Legal Feeds Blog

The Association of Corporate Counsel has formed a chapter in British Columbia to serve Vancouver and surrounding area. It makes B.C the third ACC Canadian chapter alongside Ontario and Quebec.

The B.C. chapter is the third in Canada for the ACC. (Photo: Shutterstock)

“Having a new chapter in British Columbia will provide its members with both a local and global network of the top in-house counsel and resources that address their needs,” says ACC president and CEO Veta T. Richardson.

The B.C. chapter will serve about 100 in-house lawyers representing more than 50 organizations through networking and continuing legal education.

“The creation of the ACC-BC chapter is a very exciting development for all in-house counsel in British Columbia,” said Robert Piasentin, general counsel, Sierra Systems Groups Inc., and the new chapter’s president. “The ACC has a long and well-established history of delivering high quality legal programs aimed specifically at in-house counsel. I look forward to introducing even more of British Columbia’s in-house lawyers to the ACC and giving them the opportunity to benefit from its collective experience, knowledge and expertise.”

“I am really pleased, both as a member of the ACC’s global board and as a Canadian in-house lawyer, to see a B.C. chapter,” said David Allgood, executive vice president and general counsel of Royal Bank of Canada, and treasurer of ACC’s board of directors. “ACC’s growth in Canada has been tremendous.”

ACC, which started as a U.S. in-house counsel group with about 3,000 members, now has more than 30,000 members worldwide.

“We are proud that ACC has been there every step of the way of the transformation, working to support our members and help them stay out in front of changing needs and expectations,” said Richardson.

Legal Aid Ontario is looking to enhance its services for people with mental-health issues.

On Friday, LAO announced it’s developing a new strategy to improve legal aid services for people with mental-health issues. The goal is to build on current efforts, such as extra funding, clinic assistance, and duty counsel support, in order to help people in a more efficient, effective, and holistic manner.

“The board is enthusiastic about this important opportunity to work in consultation with our stakeholders to improve our services to clients,” says LAO chairman John McCamus.

Mental health is an issue that fairly regularly comes up for LAO and its clients. On July 19, for example, the Ontario Court of Appeal ruled in R. v. Szostak, a case that considered a defendant’s bid to seek new counsel over concerns the lawyer had put the accused’s mental health at issue before the court without his consent.

In Szostak, defendant Henryk Szostak had been facing charges of criminal harassment and uttering a death threat. While Ontario Court Justice David Fairgrieve found him not criminally responsible, Szostak challenged that finding and argued the evidence didn’t make out the offence of criminal harassment.

Szostak had obtained legal assistance through LAO. At the opening of his trial in 2007 and in Szostak’s absence, defence counsel raised the issue of his client’s fitness to stand trial. The trial ultimately went ahead, but Fairgrieve later found Szostak not criminally responsible on account of a mental disorder.

Among his reasons for appealing the decision, Szostak raised concerns over his application to LAO to change his defence counsel. LAO had refused to do so. But in its ruling earlier this month, the appeal court declined to allow the appeal on this ground.

“The fact that legal aid refused to grant the application did not prevent the appellant from discharging his counsel,” wrote appeal court justice Marc Rosenberg on behalf of a three-judge panel.

“From defence counsel’s point of view, there was no breakdown of the relationship. There is no evidence that the appellant attempted to discharge defence counsel. Over the many succeeding dates when the case was before the trial judge, the appellant never told the judge that he wanted to discharge defence counsel.”

In the end, the appeal court dismissed Szostak’s appeal.

For Michael Davies, an Ottawa lawyer at Foord Davies LLP who often deals with mental health law, what’s key is that LAO make a “genuine, open attempt to see what they can improve” as it launches its review.

Among his concerns are the continuation of the certificate system for mental health matters rather than some sort of public defender model and that LAO maintain discretion over the fees in such cases. While Davies says LAO has been good in the past at allowing for discretionary fees in complicated cases that take longer than anticipated, the ongoing movement towards block fees has changed that. Instead, he notes LAO is now offering an additional block fee to lawyers taking on clients with mental health issues, something that may not always reflect the amount of work necessary on the file.

For its part, beyond announcing work on a new strategy, LAO says it has recently posted a job for a new policy counsel to develop and implement what comes out of it.

“There are a high number of people with mental health issues involved in the various aspect of the justice system,” says LAO spokesman Kristian Justesen. “It is important that Legal Aid Ontario services are sensitive to the needs of this highly vulnerable client group.”

The offices of a Bay Street law firm may seem far removed from the July 9 street party shooting on Danzig Street in Toronto’s east Scarborough neighbourhood, but Heenan Blaikie LLP has a well-established connection to that community.

Ryan Teschner says the pro bono work done through the East Scarborough Store Front fills a real need.

“I view this as a tragedy on many levels,” says Ryan Teschner, an associate in Heenan’s litigation department. “This is near and dear to me as a volunteer and more now than ever all hands need to be on deck.”

Two years ago Teschner, along with fellow associate Trevor Guy, helped launch a pro bono program to provide improved legal services to the residents via the East Scarborough Store Front, an umbrella organization that brings together 40 different partner agencies to help residents in the Kingston-Galloway area of Scarborough.

Through the firm’s pro bono legal services initiative created in January 2010, help is available to clients in the community who need assistance that goes beyond that of a legal aid lawyer.

“Often 15 minutes with a legal aid lawyer isn’t enough to help some people,” says Teschner. “Sometimes there are issues that are more complicated.”

When that is the case, the legal aid lawyer fills out a referral form and sends it to Teschner and Guy who co-ordinate with their colleagues and determine whether it’s an area the firm practises in, and can assist, for free.

The firm has worked on 20 matters for East Scarborough residents over the last two years.

Recently, an associate in the firm’s tax department assisted with the paperwork required to set up a trust fund for the funeral of 14-year-old shooting victim Shyanne Charles, whose funeral will be held July 28.

Money needed to be raised to fund different aspects of the girl’s funeral so her family could have the type of service they wanted to have, Teschner explains.

“They came to us in an effort to set up a fund that could operate to collect those funds in the appropriate way to apply to the appropriate expenses. An associate in the tax department worked on the relevant documents and in a few hours provided the services to get the fund up and running,” he says.

“Fortunately, there was a very real way we could help here, unfortunately it was after the tragedy had already occurred, but so as not to leave somebody without the ability to have the kind of funeral that they would like to have for their loved one. We were able to step in and play a small role in making that happen,” says Teschner.

While he acknowledges that “access to justice” has become a bit of a buzz phrase over the last few years, Teschner feels the pro bono program Heenan Blaikie has established with East Scarborough Storefront is “real access to justice.”

“It’s great for our lawyers here too — they are given experience on matters they might not always get experience with and to see very real examples of how their legal skills benefit a particular person,” he says.

The pro bono program is part of the firm’s overall efforts to assist Toronto’s priority neighbourhoods with legal services and access to youth employment opportunities.

“What’s been eye opening, and unfortunately confirmatory to me, is that people who are not able to access counsel find themselves in a situation more difficult to handle simply because they don’t have the resources to go up against those who might be making life a little bit difficult. It’s a consistent theme in the 20 matters we have handled. The missing ingredient of access to justice is often what creates dire situations.”

A jury in Prince George, B.C., has awarded a plaintiff approximately $809,000 in damages over a wrongful dismissal. Included in that amount is the largest punitive damages award in an employment law case in Canadian history.

Larry Higginson worked at a sawmill in Burns Lake, B.C., for 34 years until October 2009, when he was fired without severance pay. Hampton Lumber Mills Inc., based in Portland, Ore., had acquired the sawmill from Babine Forest Products Inc. in November 2006.

Higginson sued for wrongful dismissal, claiming he was terminated as an attempt to avoid paying severance to long-term employees. The companies, joint defendants in Higginson v. Babine Forest Products Ltd., argued they had just cause for dismissal.

Murray Tevlin, a senior lawyer at Vancouver employment law firm TevlinGleadle, which represented Higginson in the case, says, “Instead of just firing him after 34 years of faithful service, [the companies] made up a false allegation of cause for dismissal, [which] means that the employee has committed a fundamental breach of the employment contract by doing some outrageous act.”

Tevlin also says that before this “bogus allegation of cause,” the companies tried to make Higginson’s job miserable in order to cause him to quit.

“We were able to produce evidence that [the companies] were doing this because it’s a small town and people talk to each other . . . and certain admissions were made,” says Tevlin.

The firm also gave evidence that the companies were implementing an institutional scheme to avoid paying severance to other employees, he says.

Following a three-week trial, the jury decided that there was no cause for dismissal and awarded Higginson $236,000 in compensatory damages for wrongful dismissal and $573,000 in punitive damages for the companies’ conduct in terminating him.

Since Prince George is a mill town, Tevlin says members of the jury were probably able to relate to Higginson’s situation.

“People know what it’s like to lose your job when you’re in the management at a mill,” he says.

Also, the fact that the companies said Higginson gave them cause for dismissal could destroy his whole social standing in the community, he adds.

This case will affect the way other companies treat their employees and help drive more reasonable settlements and hopefully keep actions out of court, predicts Tevlin.

“Punitive damages are not compensatory, they are intended to punish the defendant hoping that it will cause the defendant to change its behaviour in the future and hoping that other similarly situated defendants will also not follow this course of conduct,” he says.

The defendants have not filed an appeal as of yet, but Tevlin says it’s not uncommon for companies to do so.

A former Toronto lawyer is causing a stir in his native Kenya after releasing a political memoir heavily critical of the country’s prime minister.

Former Toronto lawyer Miguna Miguna is stirring the pot with a book critical of Kenya’s prime minister. (Photo: William Oeri/Nation Media Group)

Miguna Miguna spent four years as a key adviser to Prime Minister Raila Odinga before the pair fell out last year. In his recently released book, Peeling Back the Mask: A Quest for Justice in Kenya, Miguna turns on his former boss, alleging he hasn’t lived up to his reformist billing, and implicating his party, the Orange Democratic Movement, in the violence that marred the 2007 presidential election, which Odinga narrowly lost. A subsequent power sharing agreement between the two rival candidates saw Odinga handed the prime minister’s job.

“He has always billed himself as a reformer, as an agent of change, as somebody who stands against corruption, tribalism, and nepotism. But here, I am saying he is all these things he says he is not, because I was there and he practised all these things,” Miguna tells Legal Feeds.

He’s back in Canada for a family holiday, and to promote his book to the large ex-pat Kenyan community in southwestern Ontario.

Miguna fled Kenya in the late 1980s, landing in Canada as a refugee. After his graduation from Osgoode Hall Law School, he spent more than a decade in private practice in Toronto. In 2007, he decided to return to his homeland to get involved with the burgeoning ODM.

“At some point you realize you can make a more significant impact at home than you can here,” he says. “It would have been wrong for me to just have stopped and said I’m going to enjoy my life here, because I’m a lawyer and I have everything, and to forget about Kenya.”

Although he was unsuccessful in his own attempt to get elected to Kenya’s parliament, Miguna quickly established himself as part of Odinga’s advisory team. But the relationship turned sour, and in August 2011, he was suspended from his post, and later turned down an offer of reinstatement.

Now Miguna’s book is threatening to derail Odinga’s second run at the presidency, with the poll due early in 2013. Some Odinga supporters have reportedly burned effigies of Miguna, while rival demonstrations have been held to support him.

“If I wrote a book that had no substance, the reaction would not have been so vicious, so I’m glad, because it is out of that, that positive transformations in society happen,” says Miguna, who also claims to have received death threats.

But he insists he will return to the country next month, and refuses to rule taking a run at the presidency himself.

“It’s not something I’ve thought about. I will go back, launch my book county by county, and gauge the country. I will interact with colleagues, we will continue the struggle, and let the chips fall where they may,” he says.

Miguna was no stranger to controversy during his time in Canada, clashing frequently with the Toronto Police during his time in practice. In 2000, he sued the Toronto Police Association for malicious prosecution after it complained to the Law Society of Upper Canada about remarks he made to the media while representing the family of a man shot dead by the Toronto Police Service’s Emergency Task Force. The law society declined to launch an investigation, finding no concern with Miguna’s comments.

In 2004, following his acquittal from four counts of sexual assault, Miguna sued the Toronto Police and the Crown attorneys who prosecuted him for malicious prosecution. The trial judge had found there were contradictions in the testimony of the two complainants, and was suspicious that they had a common motive to implicate Miguna. He also found the police investigation fell short in some respects.

Miguna was twice given permission to continue with his $17.5-million claim by the Court of Appeal for Ontario after lower courts had struck his claim. In 2008, the Court of Appeal ordered (http://canlii.ca/en/on/onca/doc/2008/2008onca799/2008onca799.html) the defendants to deliver statements of defence, but by that time, Miguna was out of the country, and the case has become dormant.

“I did not have the time to pursue them. My position is that I already made my point,” Miguna says. “I am not interested in reliving the past.”

Update: July 26, 2012: Changes made to clarify Miguna not fired from position with Odinga.